KPA boss free as Haji, Kinoti differ on charges
By Paul Ogemba and Paul Thoronjo | March 4th 2020
Differences between the Director of Public Prosecutions and his Directorate of Criminal Investigations counterpart played out in the open after they failed to agree on charges against Kenya Ports Authority boss Daniel Manduku.
The drama witnessed in a Nairobi court yesterday following the arrest and arraignment of Manduku signaled a fallout between DPP Noordin Haji and DCI boss George Kinoti, whose initial unity of purpose in the early days of the reinvigorated war on corruption projected a formidable force in the fight against crime.
It is also a setback to the war on graft considering the chemistry between the DPP and DCI was such that at one point even Ethics and Anti Corruption Commission (EACC) officials protested the two were sidelining the Integrity Centre-based institution, which was established by law to lead the fight against corruption, but whose dismal record had stoked public apathy.
Yesterday, whereas the DCI through lead investigator Gituathi Njoroge came armed with the case file, the DPP through his assistant Joseph Riungu refused to register the charge sheet. The prosecution said the DCI had defied their directive to release Manduku until they independently review the file.
It led to a bitter exchange of words between Haji and Kinoti’s representatives, lifting the lid on simmering tensions between the two offices on the handling of high profile cases.
“It is very unfortunate the DCI decided to drag the persons to court in total disregard of the DPP’s directive that he needs to do an independent review of the file. The DPP is very disappointed about the way the case is being conducted,” said Riungu.
According to Riungu, the DPP was surprised at the manner the DCI was handling the case against Manduku, even defying an order that he be released on a police bond before being taken to court. But Njoroge insisted they were ready with the charges and produced two huge police files with the charge sheet, which were rejected by the prosecutor and the court.
He intimated that the DCI felt frustrated by the DPP’s rejection of the file, saying he had instructions from Kinoti to bring Manduku and Kenya Revenue Authority Commissioner of Customs and Border Control Kevin Safari to court to face charges of awarding unlawful tender.
“It is a difficult matter and situation for the DCI. I don’t understand the differences between us and the prosecution since we followed due diligence, prepared the charge sheet and brought the suspects to court,” said Njoroge.
After investigations, the DCI forwards the files to DPP with recommendations on what charges to prefer against the suspects. After scrutiny, on parameters like reliability of evidence to sustain prosecution, the DPP can approve the charges, amend them or return the file to DCI for further action after identifying gaps. The same procedure is applicable for files originating from the EACC.
Their feud surprised Senior Principal Magistrate Kennedy Cheruiyot, who was forced to intervene as the blame game was getting out of hand. Cheruiyot reminded the investigator that they have no audience before the court and should only speak through the DPP, who acts on behalf of the State in all criminal matters.
“We cannot continue like this when we have no file approved by the DPP. We cannot hold a person who has not been charged and until such a time when the DPP and the DCI will put their house in order, I will direct that the two gentlemen walk out and no one should arrest them,” said Cheruiyot.
Lawyers take on DCI
The drama started as early as 7.30am when Manduku and Safari were brought to court. They waited until 11.30am when it was discovered their file was missing. The court adjourned for 20 minutes to allow the DPP and DCI to sort out the mess, but they could not agree.
Lawyers representing Manduku and Safari claimed the war between Haji and Kinoti was bigger than what was in the public domain, and warned that the two should not use their differences to violate people’s rights.
“Let them sort out their mess without punishing innocent people. It is now clear that the DPP and the DCI are fighting each other and it is a bigger battle of who wants to control what. This should not be allowed to cripple the justice system,” said lawyer Dunstan Omari.
Law Society of Kenya president Nelson Havi argued that arresting and detaining Manduku was in contempt of court, which had given him an anticipatory bail and ordered police not to detain him.
Justice Eric Ogola last December granted Manduku a cash bail of Sh500,000 and ordered police not to detain him if they wished to charge him with any offence. Manduku and Safari were arrested on Monday on allegations of unlawfully awarding tenders for the construction of cargo storage facilities at the Nairobi Inland Container Depot.
But Havi accused the investigative agency of overstepping its mandate by not allowing the prosecution to present a case before the court, and that the DPP cannot act at the behest of the DCI.
“Kenya is not a police state; we have institutions anchored in the Constitution. Any law enforcement agency cannot enforce the law if they violate the same law. We wonder why the DCI would want to press charges the DPP is unaware of,” said Havi.
Threat to graft war
Lawyer Julie Soweto, also representing Manduku, claimed the debacle had exposed the DCI, who was “pursuing his own agenda”. Soweto accused the DCI of trying to take the roles of the prosecutor when the Constitution has clear roles for each of the institutions.
She added that the clear lack of coordination between the DCI and the DPP would hinder the fight against corruption and other crimes.
“The DCI is pursuing his own agenda by trying to prosecute cases in the court of public opinion. They held the suspects illegally and denied them opportunity to see their lawyers or family members,” said Soweto.
Separately, lawyer Philip Murgor also accused the DCI of misusing the criminal justice system ‘like a toy in the arms of a young child.’ Murgor accused the DCI of threatening him through phone calls and text messages purportedly to intimidate him from a high profile murder trial. Murgor is defending Sarah Wairimu who is on trial for the murder of Dutch tycoon Tob Cohen.
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